Slate runs a piece critical of the new bill preempting various lawsuits against gun manufacturers and retailers. The title of the piece is "Fire Sale," and the subtitle is "How the gun industry bought itself immunity from the rule of law." The piece ends with "Other industries will surely recognize the utility of such legislation and will seek similar treatment when they are sued. Doubtless they will make some steep campaign donations to get it. And why not, since the rule of law appears to be suddenly up for sale?"

But — unless I've missed something big — the piece never points to gun manufacturers buying anything. There's nothing said about any supposed contributions by gun manufacturers to legislators. There's nothing about any supposed bribes. The author obviously disagrees with the substance of the law, but he doesn't give any evidence that there was something corrupt about the process through which it was enacted. (By the way, see here for a brief note on the gun industry's general income and political giving — it turns out that both were low as industries go, at least as of 2000.)

Where then is the justification for the article's title, or the closing two sentences?

There is much else that I disagree with in the article. The gun industry has been exposed to novel theories of legal liability, which don't apply to other industries: If I'm hit by a 20-year-old driver who was drunk on Coors and driving a Ford Mustang, I wouldn't be able to hold the alcohol manufacturer or car manufacturer liable — even if the manufacturer sold the Coors to a liquor store in a college town (so that the manufacturer must surely have known that some fraction of its products would end up in the hands of the underaged), even if the manufacturer knew that the liquor store had been suspected in past unlawful sales (but still was allowed by the state to sell beer), and even if I can persuade the jury that car manufacturers shouldn't be able to sell really fast and powerful cars, especially to 20-year-olds, who are notoriously prone to speeding. Yet many of the gun manufacturer lawsuits were very similar to these lawsuits, and Congress was right to preempt them. Likewise, contrary to what the piece suggests, many other industries have been the subjects of industry-specific preemption laws: The Employee Retirement Income Security Act has an even broader preemption provision; Geier v. Honda Motor Co. illustrates federal preemption of certain state tort law claims against car manufacturers; there are other examples. (For more substantive points on this, see here, here, here, and here.) But for now, I thought I'd focus on the "buying" accusation.

Joe Klein writes, in a Time magazine piece:

But it is an even better indication of how the White House reflexively dealt with unpleasant news: destroy the messenger. Last week there was more of the same, according to a prominent Republican, who told me that the White House had sent out talking points about how to attack Brent Scowcroft after Bush the Elder's National Security Adviser went public with his opposition to the war in the New Yorker magazine. "I was so disgusted that I deleted the damn e-mail before I read it," the Republican said. "But that's all this White House has now: the politics of personal destruction.

But RealClearPolitics quotes what seems to be that very e-mail, and, in the words of Mickey Kaus, the e-mail "was a completely civil and substantive attempt to rebut the substance of Scowcroft's arguments. . . . [T]he sober, almost academic email . . . ends with a vicious, inflammatory, "Let the debate proceed." If you can't send that around then you can't have a useful argument about policy. Read the e-mail for yourself, and see if "destroy the messenger" (as opposed to, say, "argue with the messenger") is a fair characterization.

(Thanks to InstaPundit for the pointer.)

As I noted last week, we're having a Volokh Conspiracy Bloggers' and Readers' Gathering this Friday (the 11th) at 8:30 pm, at the Town & Country bar, Mayflower Hotel, 1127 Connecticut Ave. (right near the Farragut North metro stop). Hope to see some of you there!

Last week, The Ninth Circuit struck down a state law that criminalized knowingly false statements in cicitzen complaints against police officers. While the law can punish knowingly false statements generally, the court held that a law can't punish knowingly false statements on one side of an issue (here, knowingly false statements accusing police officers) but leave unpunished knowingly false statements on the other side (here, knowingly false statements by witnesses who are seeking to exonerate the police officer). The court cited R.A.V. v. City of St. Paul (1992), in which the U.S. Supreme Court struck down a ban on racist fighting words; a total ban on fighting words (i.e., epithets directed to a particular person that seem likely to trigger a fight), the R.A.V. Court held, would be constitutional, but certain kinds of discrimination within the category of fighting words -- for instance, banning racist fighting words but not other fighting words -- are unconstitutional.

Three years ago, though, the California Supreme Court upheld the same provision against the same sort of challenge. We thus not only have a split among lower courts (itself a reason for the U.S. Supreme Court to hear the case, when the split involves federal courts of appeals and state supreme courts), but a split between a state supreme court and the court of appeals in the very same circuit, about the very same law.

It's always risky to predict that the Court will grant cert in any particular case, but given this split, I'll go out on a limb and make such a prediction (unless the Ninth Circuit decides to take the case en banc and reverse it, which I doubt).

Lawprof Michael Froomkin (Discourse.Net) had a great post last year on this subject; I missed it when it first went up, but it's still interesting now:

As my friend John Berryhill points out . . .:

[S]hadow cabinets have not been used in the United States because [a candidate who promises, as part of his election campaign, to appoint someone to the Cabinet] would face up to two years in jail under 18 USC § 599:

"Whoever, being a candidate, directly or indirectly promises or pledges the appointment, or the use of his influence or support for the appointment of any person to any public or private position or employment, for the purpose of procuring support in his candidacy shall be fined under this title or imprisoned not more than one year, or both; and if the violation was willful, shall be fined under this title or imprisoned not more than two years, or both."

Incidentally, I'm not sure that this provision is constutitional — see Brown v. Hartlage (1982). (Please don't argue in the Comments that it's constitutional or unconstitutional without having read Brown; it's both the most directly on-point precedent, and it makes important policy arguments that even people who don't care much about precedent should deal with.)

Finally got the Teacher's Edition for my The First Amendment and Related Statutes (2nd ed. 2005) out the door; glad to have that done. Most law school textbooks come with a teacher's manual, in which the author gives instructors some tips on teaching each section and each case, plus discussions of each problem (if the casebook includes problems, as mine does). Among other things, most teachers adopt a textbook when they start teaching a subject, and rarely switch after that -- this means that many, though far from all, of my adopters are people who are teaching the subject for the first time; and while they know a lot about most parts of the subject matter, there will inevitably be some sections that they just hadn't confronted before in their scholarship or practice.

But with the new edition of the casebook, I decided to do something that I hope will be more helpful to my adopters. The new Teacher's Edition is built on the principle that the instructor will be reading the cases in any event, and will have the text in class in any event: The comments, suggested questions, and discussions of problems should therefore be right there in the text, rather than in a separate teacher’s manual that the teacher would have to read before or after he reads the cases. The Teacher's Edition (which the instructors get but the students don't, just as with the teacher's manual) therefore has five features that I hope will be especially useful:

1. Comments and questions about the cases are noted in the right margin (using Word's Comment feature). That way, as the teacher is reading the cases in preparation for class, or looking at the case text during class, the notes will be right there.

2. Key passages that are especially likely to arise in class discussions are highlighted, so the teacher can easily find them when he or a student brings them up. The highlighting is not meant to identify the most important sections -- the teacher will know which those are. But it should help the instructor find those sections when he wants to mention them to the students (“The Court does say in the third paragraph of p. 123 that ...”) or if the students ask you in class about them (“Didn’t the dissent say somewhere that ...?”).

3. The full discussion of each problem is included on separate pages right alongside the problem. That way, the teacher doesn’t have to leaf through a separate Teacher’s Manual to find the problem, and he doesn’t have to keep both the caseboook and the manual open to the proper page: The discussion is right there in the Teacher’s Edition, at most a few pages away from the problem; the discussion of the problems on p. 7, for instance, is right there between p. 6 and p. 7.

4. The subheadings from the full discussion of each problem are noted in the right margin near the problem itself, as a brief outline of the discussion. This may make it easier to bring class back on track when students digress, and to make sure that some important issues aren’t missed in the heat of battle.

5. Despite all this, the teacher’s edition is paginated just like the textbook, so the teacher and the students can understand each other when they talk about “the second to last paragraph on p. 437.” (I did this by including all new material either as marginal comments that don't throw off the pagination, or as entirely separate pages that I then merged into the PDF file using Adobe Acrobat.)

I suspect that others have tried this in other disciplines, but I think this is pretty original for law casebooks. Perhaps if this works out, others will decide to do something similar for their works.

The Supreme Court just agreed to hear Hamdan v. Rumsfeld, which involves a challenge to the military commissions set up to try enemy combatants; the issues are whether the commissions are duly authorized by statute or possibly by the President's inherent powers, whether the Geneva Convention bars certain procedures used by those commissions, and whether the Geneva Convention is even judicially enforceable by courts (on the theory that it's self-executing). The D.C. Circuit upheld the commissions (correctly, in my view), in an opinion that then-Judge John Roberts joined. Chief Justice Roberts has therefore recused himself from considering the case.

But here's an interesting tactical twist: Today's AP report contains the following line — "Hamdan's attorneys may ask Roberts to participate in the case to avoid a 4-4 tie." Why would Hamdan's lawyers want to do such a thing?

If Chief Justice Roberts recuses himself, and the Court ties 4-4, that will affirm the lower court decision. So if you're Hamdan's lawyer, you'd reason: If Roberts would have voted against us, and this produced a 5-4 result for the government, Roberts' recusal wouldn't help us, since we'd still lose 4-4. But if Roberts would have voted for us, at least in part, and this produced a 5-4 result for us, Roberts' recusal would hurt us. The chances of Roberts voting for us, given his vote below, are small, but not zero — the lower court decision rested on certain Supreme Court precedents that bound Judge Roberts, but perhaps Chief Justice Roberts might consider reversing or modifying some of those precedents. Or maybe we can talk him around with one more argument; or perhaps his new colleagues can talk him around.

Yet here's the downside: If Roberts isn't recused, he can talk around some of his colleagues. The Justices' attitudes aren't independent factors that simply need to be aggregated; each Justice can try to persuade the others, through questions at oral arguments, discussion at their end-of-the-week conference during which they vote (a very brief discussion, but one that might still affect people), and through the exchange of opinion drafts and related memos. If Roberts is recused, then he's supposed to not participate in these discussions, and not just not vote (and I'm pretty sure that this is in fact the practice, not just the theory). But if Roberts isn't recused, then he will participate, and maybe turn a 5-3 vote in favor of Hamdan into a 5-4 vote in favor of the government. And Roberts' status as Chief may be especially influential here, not just because he'd be able to assign the majority opinion, but also because Justices are probably a little more likely to accommodate the wishes of the Chief.

There's also one other downside, albeit hypothetical: If Justice O'Connor's replacement is confirmed after the argument in Hamdan but before the decision is handed down, then a Roberts vote for the government wouldn't mean a 5-4 pro-government decision as opposed to a 4-4 pro-government decision — it might mean a 4-4 pro-government decision as opposed to a 4-3 pro-Hamdan decision. This won't happen, of course, if Alito sails through in January, as seems likely. But who knows what the Senate will do? If I were Hamdan's lawyer, I'd be figuring out the latest time I can file a motion asking Roberts not to recuse himself (there's an answer to this, but I just don't know it), since I'd want to — if possible — wait until I see whether Alito (or someone else) is confirmed before the Hamdan oral argument.

Finally, one other twist: From the perspective of people who oppose the military commissions, a 5-4 Supreme Court decision to uphold the commissions is worse than a 4-4 vote that has the result of upholding the commissions. The former sets a binding precedent, and puts the persuasive weight of the Court's majority behind the commissions; the latter leaves the issue up in the air, at least for now.

But Hamdan's lawyers, even if they personally care mostly about the legal question, must focus on the welfare of Hamdan and Hamdan alone (at least unless they've somehow expressly agreed with Hamdan otherwise, though I'm not even sure to what extent they can do that). So they need to take the course that maximizes Hamdan's chances of winning, even if increasing his personal chances of winning by 1% hurts the broader anti-commission cause by considerably more.

Finally, a warning: These are just a few quick ruminations of a Court-watcher who isn't a Court litigator; I think they're right, but I'd love to be corrected if I'm mistaken.

UPDATE: Reader Dan Schmutter points out: "One other pro-recusal thought. As a member of the majority below, Roberts may be more persuasive with his colleagues having more familiarity with the record below than another member of the court simply reading the briefs for the first time."

Lawprof David McGowan opines on this at the Legal Ethics Forum. The post is long (because the issue and the relevant law are complex) and interesting, but here's the bottom line:

Did Judge Alito violate any rules by sitting on the case? Deborah Rhode opined on NPR that Alito’s sitting on the case was “a violation of judicial ethics 101.” Steve Lubet was more forgiving, describing it as a mistake justifying an “oops” response, but not an episode calling Alito’s ethics into question. Steve Gillers pretty much agreed . . . .

I think Professors Lubet and Gillers are right, and that Professor Rhode is not. One can approach this question in a pragmatic, purposive manner, in which case it is clear that Judge Alito did nothing seriously wrong, and that this episode provides no basis to question his ethics, or in a strictly literal, formalist, manner, in which case a case might be made that he violated rules against conflicts by hearing the case the first time but then properly recused himself when a complaint was made. That case has not yet been established, however, though the reports cited above imply that it has.

for his guest-blogging last week!